Chief Justice Beinisch steps down soon, but seems to want to do as
much damage to the Yesha enterprise as she can before then. This
explains her most diabolical ruling, which she has - singlehandedly,
because Israel allows that - made into law.
From Moshe Dann
November 1, 2011
On September 12, Chief Justice Dorit Beinish rendered a highly
controversial decision, based on an unwritten policy she had been
using, which broke with traditional interpretations of law, yet, the
media (with the exception of Arutz Sheva, the Hebrew Makor Rishon and
Besheva ed.) largely ignored it.
In a case brought by Peace Now against neighborhoods ("outposts") in
the Binyamin communities of Eli, called Hayovel, where Eliraz Peretz's
widow and children live and Harisha, in the Talmonim bloc, Justice
Beinish directed the State, i.e. Civil Administration for Judea and
Samaria, to determine what constitutes State land.
According to her ruling, all land not specifically designated as State
Land would henceforth be considered "private [Palestinian] land," by
default, rather than unowned land.
She also gave the State 60 days to provide a schedule for destroying
all (Jewish) building on "private land," with the exception of the
Peretz home; Major Peretz was killed in a battle with Hamas terrorists
in March, 2010.
This ruling radically shifts the burden of proof from Arabs who claim
that their land was taken illegally and places it on Jewish
communities who claim the land is not privately owned and available
for settlement. Since there is no appeal from her decision, unless the
Knesset acts, her decisions constitute the law.
Justice Beinish decision overrides important distinctions and
categories of land established by prior administrations and accepted
by Israeli courts. Her ruling redefines which lands are to be
considered "disputed" and seems to accept at face value Arab land
claims that have not been verified and lands which Arabs have simply
expropriated illegally.
Moreover, since Israel has not declared sovereignty or annexed land
beyond the 1949 Armistice lines (except for eastern Jerusalem and
Golan) Beinish's ruling could apply to many other areas in Judea and
Samaria as well. Not only "hilltop" communities like Migron, Amona,
Givat Asaf, and Havat Gilad are vulnerable; large parts of Ofra, Bet
El, Eli, Elon More and others would be targets for destruction.
At issue is what constitutes "State land" and "private Palestinian
land." According to Israeli law, questions of land ownership in Judea
and Samaria are decided by the Civil Administration in conjunction
with the State Prosecutor's Office (in the Ministry of Justice); both
have been accused of pursuing anti-settlement policies.
Decisions about land ownership should be based on impartiality,
objectivity and professionalism; often influenced by political
agendas, they are not. In the absence of documentation and detailed
land surveys, for example, the Civil Administration relies on old
aerial photographs for evidence of the land once being worked, which
are used to support claims of ownership.
NGOs and Arabs often cite maps produced during the British Mandate to
claim land and contest Jewish settlements. But these maps, as Dr. Dov
Gavish explains in his authoritative Survey of Palestine, 1920-1948
(2005), were fiscal maps, often arbitrary and inaccurate, not proofs
of ownership.
Since "State land" means ownerless land that was once controlled by
Turkish, British and Jordanian administrations, then Israel, as the
sole legitimate sovereign successor seems to have full legal rights to
the land. That would include all conditions, restrictions, obligations
and responsibilities attached to the land.
Similarly, land which had been gifted or designated by the state to an
individual, clan, or village, but was not used, abandoned property,
and land in which the owner dies intestate reverts to the State by
law.
Beinish's ruling seeks to overturn the meticulous work of respected
expert Plia Albeck, who directed the Civil Department of the State
Prosecutor's Office for 24 years, until she was fired by Attorney
General David Libai in 1993, when Yitzhak Rabin became Prime Minister.
During her tenure, Albeck was responsible for determining land
ownership and provided the legal basis for establishing Jewish
communities in areas acquired by Israel in 1967.
Using Ottoman/Turkish, British and Jordanian law, Albeck, who died in
2005, defined many areas in Judea and Samaria as State land, thus
allowing their subsequent designation for settlement. She describes
(and defends) her work in Land Use in the West Bank (2002) (in
Hebrew), published by Ariel College of Judea and Samaria.
Attempting to reverse Albeck's efforts for his own agenda, then PM
Ariel Sharon, in 2004, when he was formulating his plans to withdraw
from the Gaza Strip and Northern Shomron, hired Taliya Sasson, a
member of Peace Now and formerly an attorney in the State Prosecutor's
Office. Her report in 2005 castigated government agencies for their
involvement in settlement building, sought to redefine State land, and
asserted Palestinian claims that all settlements were illegal. Justice
Beinish seems intent on implementing Sasson's report.
Claims that Jews have stolen and built on "private Palestinian land"
should be decided by competent objective authorities based on evidence
in courts of law not by politically motivated individuals and
advocacy groups.
The larger question, however, is to whom this disputed territory
belongs. Since "Palestine" was never a separate legal or sovereign
entity, designating land as "Palestinian" or belonging to "the
Palestinian people" lacks accuracy and authenticity.
Ironically, Justice Beinish's decision to make the question of
landownership in Judea and Samaria subject to Israeli civil law may
provide the basis for establishing sovereignty over and extending the
State's jurisdiction to areas currently under military control. That
would be a step forward for Israeli democracy and fulfilling the
historic mission of the Jewish people in the Land of Israel.
http://www.israelnationalnews.
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